Section 18C and the Fear Machine: Racial Vilification Debate Again
Tuesday 20 January 2015 @ 10.50 a.m. | Crime | IP & Media | Legal Research
When reading the recent press, one could be forgiven for thinking that some media commentators misread "Je suis Charlie" as "Je suis un Charlie" - or I am a Charlie, given the claims made by some of these commentators that the presence of legislation like section 18C of the Racial Discrimination Act 1975 (Cth) (the Racial Discrimination Act) actually make societies like Australia appear submissive to, and somehow supportive of, the obscene terrorist violence carried out against French Magazine Charlie Hebdo in Paris recently.
What some of the commentators have said
Commenting on the News.com site commentator Andrew Bolt writes:
"Protestors around the West, horrified by the massacre in Paris, have held up pens
and chanted 'Je suis Charlie' — I am Charlie.
They lie. The Islamist terrorists are winning, and the coordinated attacks on the
Charlie Hebdo magazine and kosher shop will be just one more success. One more step
to our gutless surrender."
He then proceeds to decry Victoria's religious vilification laws and what he terms as Australia's "oppressive racial vilification laws" namely section 18C.
In a similar vein, Liberal backbencher Mr Cory Bernardi has also tried to pin the blame for recent terrorist attacks on racial vilification laws; reported in recent press as indicating that the real problem is sections 18C and 18D of the Racial Discrimination Act, the sections that were promised to be repealed because "people do have the right to be bigots".
"The time for being bullied is over - we cannot negotiate with the intolerant, . . . Let's fight for fundamental freedoms and reject those who will pursue aims that are at odds with that."
Is what they say about section 18C true?
Well apart from the Federal AG's defence of the average citizen's right to have and express bigoted ideas early in 2014 (see our post The Right to Express Bigotry: Red Light or Green), it is important to remember another fundamental thing about free speech and that is, that it's never really completely free.
Completely free speech implies a lack of structure and no framework in place for civilised debate and conversation, a position that will actually lead to more argument and create only frustration dominated by the person with the loudest voice best able to shout everyone else down:
"It's kind of hard to see how getting rid of the rarely-used sections of the [Racial Discrimination] Act (18C and 18D) would have somehow prevented the attack, or indeed achieved anything else."
It is not a surprise that many of the strongest supporters for removing our racial vilification laws are people who happen to fall into situations which offer them Parliamentary privilege, large media ownership and readership.
Further on this is the point made by The Conversation concerning the one real case decided under section 18C of the Racial Discrimination Act, Eatok v Bolt. That case involved a printed article found to have been factually inaccurate and therefore not "fair comment" under section 18D.
"It is also worth recalling that the case that fueled opposition to section 18C, Eatock v. Bolt, concerned printed articles – not cartoons or caricature. Section 18D of the Racial Discrimination Act includes various exceptions, including for fair comment, artistic work and performance. In the Bolt case, the judge found against fair comment in the public interest because the articles contained significant factual errors."
And About Free Speech
If the commentators want to champion free speech, then rather than look to the fear of recent terrorism to justify further changes to the Racial Discrimination Act, they might achieve more by realising, as The Conversation points out, that the real difference between Australia and France when it comes to free speech is, namely that:
"Australia, unlike France and other democracies, has only an implied right to freedom of speech on political affairs in the constitution. Those with genuine concerns about lack of free speech protections in Australia would do better to campaign for a bill of rights rather than pursue misdirected battles against section 18C."
In Australia we have an implied right only to free speech that means governments can overrule it, modify it and largely ignore it whenever they feel the need or have a reason to do so:
"When the anti-18C campaign does not extend to other legislated restrictions – for example, section 578C of the Crimes Act, which includes publication of offensive or indecent articles, or section 35P of the ASIO Act – there is good reason to be cynical. When couched in terms of one’s 'right to be a bigot', even more so." (emphasis added)
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